Sh*#s Don't Prosper

Ben Katekar interviews Justice Kenneth Martin of the Supreme Court of Western Australia in January 2016 on what makes great advocacy.

In January this year, I had the honour of interviewing Justice Kenneth Martin of the Supreme Court of Western Australia who has been involved in the Australian Bar Association's Advanced Trial Advocacy Courses since their inception in 2007.

It has been through my involvement in these courses as a participant and coach that I have come to know this extraordinary member of our profession.

On Persuasion

There’s an apocryphal story about Lord Denning, which is instructive.

Lord Denning was famous for his creative judgments, which were simply and entertainingly expressed, and were invariably designed to reach the outcome that he thought was fair (although perhaps with a little collateral damage to existing principles of law along the way).

The story goes that Lord Denning was guest of honour at a dinner attended by some visiting dignitaries, who asked him about his approach as a judge.

He answered: “I use the SDP principle”.

This was at a time when there was a breakaway party from the Labor Party called the Social Democrat Party (known as the SDP). The dignitaries expressed surprise to Lord Denning that he was politically motivated.

“No, no” said Lord Denning, “SDP stands for “Shits Don’t Prosper””.

You can never underestimate this factor, as a persuasive force to a judge, in deciding who is going to win and who is going to lose.

This is certainly something that has an impact to my mind as a Judge. I am there to perform a public service, and I do my best, to the extent the law allows, to attain a just outcome.

The SDP principle in operation at the High Court

My experience is that the SDP principle is pervasive, right up to the highest judicial level.

During my 18 months as Associate to Sir Ronald Wilson on the High Court, I got some insights into judicial thinking at that level.

Sir Ronald was a very generous and inclusive person. The strong impression I got from Sir Ronald on these occasions, and from other judges preparing to sit on the special leave panels, was that they really wanted to see a just outcome, and did what they could within the law to see that it was done.

Appellate jurisprudence requires appeal courts to follow Fox v Percy, to usually leave the facts found alone, and not allow fact related arguments that were not run at the trial. My experience is that that’s what’s said, but that it’s always hard to turn a blind eye to a potential injustice or unfair result.

My experience as an associate in the High Court was that, if the Bench is confronted with what appears to be an unjust outcome, there’s always a strong incentive to use all available tools in the kit bag to try to correct it. And the Courts, particularly a Court of Equity, has a lot of tools! There are usually ways of correcting an unjust outcome.

On What’s Necessary as an Advocate

A vital ingredient in being persuasive is this: a barrister should personify reasonableness, and try to present a case so that it displays inherent reasonableness.

If you cannot find this ingredient in your case, you should experience some degree of anxiety and at least try to find a way of presenting your case as ostensibly reasonable.

As a judge, the barrister who appears as the most reasonable, and whose case seems to be a fair one, is always the most seductive.

The barrister’s craft is therefore to find a part of their case that can be ‘sold’ as persuasive to an astute, fair-minded judge.

On what sets someone apart as an exceptional advocate

Two words: hard work.

My mentors in my early professional years, David Ipp and Chris Steytler, taught me the true meaning of hard work.

As I progressed through my professional life, I saw that all of the true greats possessed this characteristic. Each of the outstanding advocates for whom I was a junior over the years, including (not in any particular order) Neil McPhee QC, David Bennett QC, Ray Finkelstein QC, Ian Callinan QC, Chris Zelestis QC – and of course David Ipp AO QC and Chris Steytler AO QC – all had it in spades.

The best I’ve seen on the Bench

As a judge, I can recount an occasion on which I encountered what I would vote as the best civil advocate to have appeared before me as defence counsel. I will not disclose the name, only to say that it was a male barrister, not from Perth. He appeared in a case that was due to run for a long time, but settled after about 4 hearing days, following a devastating cross-examination of the plaintiff’s main witness.

After I was told the case settled, I met with counsel in my chambers (but after this particular barrister had left to go home), I was told of the prodigious hours he put in, before and after trial days. This work ethic was displayed in his total command of the materials. It was apparent to me that, during the trial, everyone in the Courtroom, including his opponents, was in awe of him.

No doubt this gentleman is a very gifted practitioner at the highest level, with full command of all the skills required as an advocate. But what seemed to me to set him apart was how hard he had worked to enable him to transcend the material, yet be fully immersed in the detail, as was required in any given moment.

A high price

I have strived to follow such a work ethic during my career. You can pay a high price for it – in your personal life, and maybe in your health. But the law is a very jealous mistress. Holidays are essential!

You also need someone in your life who does not take personally the fact that the job you do, that is so important, and affects people’s liberty and rights, demands so much time. I am extremely lucky in that respect.

On running a case

(a) Take charge

A now late, but great, defamation barrister Neil McPhee QC led me in several big matters. Neil would carry around a small exercise book with him for the weeks prior to the trial constantly jotting tasks and also ideas. He would project manage all aspects of the looming trial, using the exercise book to keep track of everything and at all moments of the day.

Neil showed me that you have to get as much work out of the way prior to trial before it starts, so you’re not over-burned during trial. Your chronologies, witness analyses, key points for cross-examination, draft closing submissions, all need to be close to finalised before the trial starts on day one. When a trial runs it will be all-consuming and, exhausting mentally, preventing those things being done, or being done properly.

In the morning prior to trial, and during trial, we would meet (often very early in the morning after a very late night working). Neil would start on his list ticking and crossing off things or chasing down what was outstanding! He carefully project managed the preparation for trial, and the conduct of the trial itself.

This is how a truly great barrister takes care of a big trial.

(b) There can only be one General

A trial is a battle. There’s a famous story of Hannibal coming over the Alps to attack the Romans – the Battle of Canae, during the Second Punic Wars, in 215 BC. The Romans sent two battalions to meet Hannibal, with two great generals. Hannibal was able to defeat them, despite their greater numbers, by taking advantage of their disarray in command from having two leaders, who did not agree and did not co-ordinate their attacks.

It’s the same for a trial: all views and inputs can be given, but there can only be one leader.

(c) Be demanding

As the leader, you must demand the resources you need for the battle ahead.

I found this included demanding a junior counsel, that I could work with and reliably delegate to.

It also includes demanding the evidence you think you need. One of the mistakes I made as a young and raw junior counsel, was letting myself be talked out of hiring an expert at a trial. The opposing side’s expert’s report seemed weakish. The client and instructing solicitors thought I would be able to destroy their expert in cross-examination. They wanted to save the expense of having our own expert. Of course, it failed: the judge fell in love with their expert, and I could not make significant headway in cross-examination. I had no expert evidence in answer to their expert testimony. It was awful. But painful lessons are best learned young. I didn’t repeat that mistake.

(d) Take responsibility

Taking charge also means taking responsibility for the state of your case – including the pleadings and the evidence, even if you don’t like them, and even if they were done before you were involved.

Once the trial starts, it is too late to apologise for them.

I have seen repeatedly, that some barristers try to distance him or herself from the pleadings. But that is what I as judge have to decide the case on.

Once the trial begins, you have to run it against what you have got, and take responsibility for all aspects of the case. If the pleadings or the evidence need fixing up, you must fix them up before the case starts. Once the case starts, there is no room for apology.

(e) Think about the appeal on the horizon

I was fortunate to have Ray Finkelstein QC lead me on a number of occasions. Ray was an absolutely outstanding advocate, whilst at the same time always a great long term tactical thinker.

Ray was brilliant at picking things up at the trial, but thinking things through as to how they could play out on appeal…taking a realistic/pessimistic view.

In one 4-week trial, we were on together, Ray had been very effective in cross-examination, seemingly destroying the other side’s key witnesses. But the other side had points of law that might have come back to bite us on appeal. Even though we were likely to win at trial. He always “emptied the magazine” on each of those points of law - so the case didn’t come back to life on appeal. This was brought home to me very strongly. It was wise advice I was able to hold the judgment on the appeal as junior counsel because of that longer term groundwork.

5. On written submissions

The most persuasive role of written submissions is in the outline of submissions prior to trial, and in the written submissions on appeal.

(a) Outline of submissions for trial

For this type of submissions, I suggest leaving a little something for the oral address – maybe 15%. There are two principal reasons for this.

The first reason is that, once the judge has read your submissions, and the other side’s, the judge will most likely have his or her own take on the case. You need to leave room for flexibility in oral argument – what Alex Chernov QC used to tell me, was “room to swerve”.

Written submissions should therefore lay the groundwork for your arguments.

This leads to the second reason for leaving something fresh to offer: the best thing is when the judge comes to the right conclusion of their own volition. Or perhaps thinks of a point themselves, that tips the scales in your favour.

It’s always a stronger point if the judge thinks they thought of it. Lead them there but don’t give the last piece of the puzzle.

In my reasons, when you read the conclusion at the end, my associates will sometimes say to me “I’d already reached that conclusion myself”. I say “Really!”. That can be effective in written submissions: leave clues along the way so a reader is already there by the time you say so.

Thus, in written submissions, invite the ideas by laying the groundwork. Allow the judge to reach the natural conclusion - that simply must be right.

(b) Submissions on appeal

When I think of written submissions on appeal, I have in mind a picture of a mentally exhausted judge, at home, late looking at your written submissions at the end of a long and tiring day on the Bench.

For someone like that, do you give them a densely worded 50 page tome? No, you give them a widely-spaced lightish document, saying, something like “here are the 5 key points as to why the appeal should be allowed, because there’s an error in the reasons that leads to this unjust result…”.

Written submissions for an appeal have to be refined and easily digestible. They should “seed the cloud”. They should be as brief as possible, but persuasive, containing all your best points.

Like an outline of written submissions for a trial, appeal submissions should lay groundwork for the Bench to reach the desirable conclusion itself, as if it was their own idea.

6. On oral appellate advocacy

While I did a lot of appellate work as a silk, I always enjoyed the trial work more. I found that at a trial, there was more scope to deploy forensic tactics. By and large, on appeal you are bound by the outcome of the forensic battle, and it can be impossible to turn things around.

In appellate work, the most effective way of persuading the court is to convince them that the most just outcome is with you: the SDP principle. The argument should be framed around this central notion.

For the respondent, it’s doubly hard on an appeal. You don’t know what’s going to come up. Often the grounds of appeal are not helpful, and don’t clearly tell you what they’re about. What if the Court is attracted by one of them? Your written submissions might meet what you understand is the real point. But the Bench may have a different take on it.

So again, as a respondent to an appeal, in your written submissions, you may need to hold something back for the oral argument, so you have something left to persuade with.

Being a respondent on appeal is much harder than being an appellant. You have to be totally across everything, not knowing what new things might emerge from the appellant’s counsel at the appeal hearing, or what might emerge from the Bench. It’s a more instinctive role, where you need to move with where you think the judicial mind(s) move.

On appeal, it’s the hopeless opponent that can be the very dangerous. The Bench might pick up on something that isn’t clearly put in the submissions, taking up the slack from the poor representation in an effort by the Bench to ensure that the just outcome is achieved.

About Justice Martin

Justice Kenneth Martin grew up in Northam, in rural Western Australia, as part of a large farming family. He graduated from UWA in 1977 with two honours degrees (BJuris and LLB) and a couple of prizes. He completed his articles at Parker & Parker, which firm was later associated with Allen Allen & Hemsley, and then became Freehills.

Justice Martin was the first Associate of Sir Ronald Wilson on the High Court following appointment in 1980. Justice Martin was there for 18 months. He then completed a Master of Laws at the University of London.

Justice Martin re-joined Parker & Parker in 1982, and became a litigation partner in 1984. There (as part of the “amalgam”), he was mentored by David Ipp and Chris Steytler, both of South African origin, and who both later became judges on the Western Australian Supreme Court (David Ipp later becoming a judge of appeal in New South Wales, then ICAC Commissioner).

Justice Martin was called to the independent Bar in 1992, and was made silk in 1997. He was Editor of the West Australian Law Reports from 1985 - 1996, and Consulting Editor from 1997 – 2000. His Honour was President of the Law Society of WA in 2001, and President of the Bar Association of WA from 2005 to 2007. He was awarded the Centenary Medal in 2002.

Justice Martin became a judge of the Western Australian Supreme Court in 2009.